19801027 TZHC Musoma

IN THE HIGH COURT OP TANZANIA ATIVIUSOMA. APPELLA.TE JURISDICTION (pc) CIVIl iEA.L YOr 65 OP 1979 (Prom the decision of the District Court 3f Serengeti at Mugumu in Civil Appeal io 25 of 1979 - Before: R. I I&&ume Esq, District Magistrate and Original Ngoreme Primary Court Civil Case No 122 of 197 ]YLA.E.INGO iL.HIiVO APPELLLLNT VERSUS 3.A.NYA. M.4HIiO :::::: :: ::::::::::: : : : : : : : :,: ; : :: : RESPO1WENT 0000 , U D G E M E N T The claim by the respondent in the .rimary Court was obviously founded or an illegal basis and therefore should never have been entertained and enforced by either the Primary Court or the District Cou: The parties in this appeal are brothers The respondent who is the younger brother approached his elder brother the appellant with a proposal that he wished to marry his dahterThe parties belong to the Wangr'reme tribe in Mara Region and since this seemingly preposterous proposa, was not only entertained but app:eoved by the appellant, it must b taken to mean that the Wangoreme allow such kind of marriage s i 0 e bet.1een a man and his niece. Accordingly the respondent paid 40 cows ad 30 goats as bride price to his z'other, and he took his young niece a a wife, he called her child—wi later when this marriage broke up he filed this suit in the Primary Court claiming refund of e bride price The appellant admitted 'iability for only 33 cows nd 17 goats 2 but both courts allowed th :'espondent's claim and ordero the appellant to pav the 40 cows and 30 goats This appeal is against these dooisions Pirst of aJ what both courts overlooked was that there was no evidence of the llharriage 5 having been dissolved by a competent court, hence the question of refund of bride puce did not arise 0 Secondly the so call:;d 1 marriage oetween the respondent and the appellans daughter ws illegal ar 1. void and therefore unenforceabi&, in fact both the appel1at and his brother the respondc, should have been prosecuted under section 149 of the law of Marriage This is because whatever the position in n Ngoreme Customary Law on the marriage between a man and his niece, this is now prohibited by the national law; section 14 (i) of the law of Marriage Act is relevant, The respondent should not therefou have gone to the courts to enforce his unlawful actions0 For these reasons all the proceedings in the Primary Court as \iell as the District Court are quashed and all the. orders set aside. The girl is now free to marry outside the prohibited relationships and the respondent is not entitled to use the courts to enforce his claim to be refunded or paid anything v!hich he paid as kride price in an illegal marriage. There will be no order for costs in favour of either party. . VJ"Qk'"A 1. MFALILP JUDGE